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G.R. No.

195244 June 22, 2015

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
ALVIN ESUGON y AVILA, Accused-Appellant.

DECISION

BERSAMIN, J.:

Every child is presumed qualified to be a witness. The party challenging the child's
competency as a witness has the burden of substantiating his challenge.

Under review is the decision promulgated on July 23, 2010, 1 whereby the Court of Appeals
(CA) affirmed with modification the conviction of the appellant for the composite crime of
robbery with homicide handed down by the Regional Trial Court (RTC), Branch 211, in
Mandaluyong City through its judgment rendered on January 27, 2006. 2

Antecedents

The information charged the appellant with robbery with homicide, alleging as follows:

That on or about the 22nd day of October 2003, in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, with intent to
gain, with the use of a bladed weapon, by means of force and violence, did, then and there,
willfully, unlawfully and feloniously take, steal and carry away cash money amounting to
₱13,000.00 belonging to JOSEPHINE CASTRO y BARRERA, to the damage and prejudice
of the latter; that by reason or on occasion of said robbery, accused did, then and there
willfully, unlawfully and feloniously attack, assault and stab with the said bladed weapon said
JOSEPHINE CASTRO y BARRERA, thereby inflicting upon her physical injuries which
directly caused her death.

CONTRARY TO LAW.3

The CA adopted the RTC’s summation of the evidence of the Prosecution, to wit:

Carl or Muymoy, 5-year old son of the victim, testified that on the night of the incident, he, his
younger sister Cheche, and his mother and father, were sleeping on the ground floor of their
house. He saw appellant, whom he calls "Nonoy," enter their house and stab her mother with
a knife, while he (Carl) peeped through a chair. Although there was no light at the ground
floor, there was light upstairs. After his mother got stabbed, his father chased the appellant.
Carl saw blood come out of his mother’s lower chest. His father then brought her to the
hospital. Carl positively identified the appellant, a neighbor who often goes to their house, as
the one who stabbed his mother. On cross-examination, he related that the assailant took
money from his father’s pocket. He likewise admitted that he did not see very well the
perpetra tor because there was no light (TSN, February 24, 2004, pp. 3, 11-23, 28, 30-32).

Upon being asked by the trial court, Carl stated that although there was no light when his
mother was stabbed, he was sure of what he saw since there was light at their second floor,
which illumined the ground floor through the stairway (TSN, February 24, 2004, pp. 33-34).
Insp. Marquez, who autopsied the body, related that the cause of the victim’s death was
hemorrhagic shock due to stab wound. The wound was located at the epigastric region,
measuring 2.8 x 0.5 cm, 4 cm from left of the anterior midline, 13 cm deep, directed posterior
and upward, piercing the right ventricle of the hear t, thoracic aorta and lower lobe of the left
lung (TSN, April 21, 2004, pp. 1, 6; Exh. "I," Records, p. 103).

Next to testify was Dennis, husband of the victim. He narrated that he and the victim were
married for nine years before the incident and that they have four children: Monica, 11 years
old; Mary Joy, 9 years old; Carl, 5 years old; and Cherry Ann, 7 months old. At about 9 p.m.
on October 21, 2003, he and his wife were sleeping downstairs in their sala, with their baby,
while their other children slept upstairs. Their sala measures 3 by 3 meters. At around 2
a.m., his son Carl woke up crying and went downstairs to sleep with them. Fifteen to thirty
minutes later, he heard someone shout "magnanakaw!" [H]e turned on the light and saw that
their door was open. He got their bolo and ran outside. When he did not see anybody, he
returned and heard his wife moaning. He embraced and carried her and saw blood on her
back. He shouted for help and his brother-in law helped him bring the victim to the hospital
where she eventually died. He spent ₱23,000.00 for the funeral and ₱44,500.00 for the wake
and burial. On cross-examination, he admitted that he has no personal knowledge as to who
stabbed his wife since he did not actually see the perpetrator and that it was his son who
saw the appellant (TSN, August 25, 2004, pp. 3 12; October 6, 2004, pp. 5-6; November 17,
2004, pp. 3-4).

Sharon, sister-in-law of the victim, testified that she and her husband were sleeping upstairs
when they were roused from their sleep at around 2 a.m. of October 22, 2003 by Dennis’ cry
for help. She saw that there was blood on the victim’s chest. After the victim was brought to
the hospital, she noticed that the victim’s children were trembling in fear and were crying.
They got outside and went to the billiard hall in front of their house. She took Carl and had
him sit on her lap. Then Carl said, "Tita, sya pasok bahay namin" pointing to someone but
she did not see who it was since there were many people passing by. Later, the police asked
Carl whether he saw somebody enter their house and he answered yes and demonstrated
how his mother was stabbed. Carl also said that the person who stabbed his mother was
present in the vicinity. He then pointed to appellant and said " siya po yung pumaso k sa
bahay namin." As a resident there, appellant often goes to the billiard hall and sometimes
watches the television at the house of the victim (TSN, February 9, 2005, pp. 3-14).

PO1 Fabela also testified that after it was reported to him that there was a stabbing incident,
he went to the hospital then to the crime scene and interviewed the persons thereat. Later,
Carl pinpointed and positively identified the appellant as the one who stabbed his mother and
robbed them of their money. Appellant was arrested and brought to the police station (TSN,
March 16, 2005, pp. 2, 5-6).

PO2 Sazon meanwhile testified that while he was questioning people in the area, Carl
pointed to them the suspect who was one of the bystanders. They were asking Carl
questions when he suddenly blurted out that it was appellant who entered their house and
stabbed his mother. They invited the appellant to the police station but the latter denied
having committed the crime. On cross-examination, the witness admitted that their basis in
arresting appellant was the information relayed by Carl (TSN, April 27, 2005, pp. 2, 12-17;
June 15, 2005, p. 5).4

In turn, the appellant denied the accusation. According to him, he had frequented the victim’s
billiard hall, which was situated only four houses away from where he lived, and, on the
evening in question, he had been the last to leave the billiard hall at 11 o’ clock p.m. and had
then gone home. He recalled that he had been roused from slumber by screams for help
around two o’clock a.m., prompting him to ask his mother for the key to the door; that he had
then gone outside where he learned of the killing of the victim; that police officers had later
on approached him to inquire what he knew about the killing because they told him that Carl,
the young son of the victim, had pointed to him as the perpetrator, making him the primary
suspect; that he had replied that he had had nothing to do with the crime; and that he had
assured the police officers that he had never been involved in any wrongdoing in his years of
living in the neighborhood.

The appellant’s mother corroborated his version.5

Judgment of the RTC

As mentioned, the RTC pronounced the appellant guilty of the crime charged under its
judgment rendered on January 27, 2006,6 disposing:

WHEREFORE, premises considered, finding the accused ALVIN ESUGON y AVILA @


"NONOY" GUILTY beyond reasonable doubt of the crime of ROBBERY WITH HOMICIDE
under Article 293 and punished under Article 294 (1) of the Revised Penal Code, the court
hereby sentences him to Reclusion Perpetua and to indemnify the heirs of JOSEPHINE
CASTRO y BARRERA as follows:

1) ₱50,000.00 civil indemnity;

2) ₱57,500.00 as actual damages;

3) ₱50,000.00 as moral damages.

SO ORDERED.7

Decision of the CA

On appeal, the appellant argued that the RTC erred in finding him guilty beyond reasonable
doubt of the composite crime of robbery with homicide based solely on the testimony of Carl,
a 5-year old witness whose recollections could only be the product of his imagination. 8

On July 23, 2010, however, the CA, giving credence to the child witness, and opining that his
inconsistencies did not discredit his testimony, affirmed the conviction of the appellant, 9 ruling
thusly:

WHEREFORE, the appeal is DENIED for lack of merit. The Decision dated January 27, 2006
of the Regional Trial Court, Branch 211 of Mandaluyong City in Crim. Case No. MC03-7597,
is hereby AFFIRMED with the MODIFICATION in that the award of ₱57,500.00 as actual
damages should be DELETED and in lieu thereof, temperate damages in the amount of
₱25,000.00 should be AWARDED the heirs of Josephine Castro y Barrera.

SO ORDERED.10

Issues
In this appeal, the appellant posits that the adverse testimony of the 5-year old Carl, being
filled with inconsistencies, was not credible, but doubtful; that unlike him, his sisters, who
were then at the second floor of the house, were not roused from sleep; that contrary to
Carl’s recollection, the place was not even dark when the stabbing attack on the victim
occurred because his father said that he had turned the light on upon hearing somebody
shouting " Magnanakaw!;" and that his father had then gotten his bolo, and gone outside the
house.11

Moreover, the appellant maintains that the Prosecution did not prove that violence or
intimidation was employed in the course of the robbery. He argues that he could not be held
liable for robbery by using force upon things considering that the culprit had neither broken
any wall, roof, floor, door or window to gain entry in the house nor entered the house through
an opening not intended for entrance. If at all, he could be liable only for the separate crimes
of theft and homicide, not of the composite crime of robbery with homicide. 12

The Office of the Solicitor General (OSG) counters that the evidence showed that the
appellant’s principal intent had been to rob the victim’s house, with the homicide being
perpetrated as a mere incident of the robbery; and that Carl positively identified the appellant
as the person who had stabbed the victim, his identification bearing "all the earmarks of
credibility especially when he has no motive for lying about the identity of the accused."13

Ruling of the Court

The appeal is bereft of merit.

The most important task of the St ate in the successful prosecution of the accused is his
credible and competent identification as the perpetrator of the crime. Hence, this appeal
turns on whether or not the identification of the appellant as the perpetrator of the robbery
with homicide was credible and competent considering that the identifying witness was Carl,
a 5-year old lad, whose sole testimony positively pointed to and incriminated the appellant as
the person who had entered their home, robbed the family, and killed his mother.

The qualification of a person to testify rests on the ability to relate to others the acts and
events witnessed. Towards that end, Rule 130 of the Rules of Court makes clear who may
and may not be witnesses in judicial proceedings, to wit:

Section 20. Witnesses; their qualifications. - Except as provided in the next succeeding
section, all persons who can perceive, and perceiving, can make known their perception to
others, may be witnesses.

Religious or political belief, interest in the outcome of the case, or conviction of a crime
unless otherwis e provided by law, shall not be a ground for disqualification. (l8 a)

Section 21. Disqualification by reason of mental incapacity or immaturity. - The following


persons cannot be witnesses:

(a) Those whose mental condition, at the time of their production for examination, is
such that they are incapable of intelligently making known their perception to others;

(b) Children whose mental maturity is such as to render them incapable of perceiving
the facts respecting which they are examined and of relating them truthfully. (19a)
As the rules show, anyone who is sensible and aware of a relevant event or incident, and
can communicate such awareness, experience, or observation to others can be a witness.
Age, religion, ethnicity, gender, educational attainment, or social stat us are not necessary to
qualify a person to be a witness, so long as he does not possess any of the disqualifications
as listed the rules. The generosity with which the Rules of Court allows people to testify is
apparent, for religious beliefs, interest in the outcome of a case, and conviction of a crime
unless otherwise provided by law are not grounds for disqualification. 14

That the witness is a child cannot be the sole reason for disqualification. The dismissiveness
with which the testimonies of child witnesses were treated in the past has long been erased.
Under the Rule on Examination of a Child Witness (A.M. No. 004-07-SC 15 December
2000), every child is now presumed qualified to be a witness. To rebut this presumption, the
burden of proof lies on the party challenging the child’s competency. Only when substantial
doubt exists regarding the ability of the child to perceive ,remember, communicate,
distinguish truth from falsehood, or appreciate the duty to tell the truth in court will the court,
motu proprio or on motion of a party, conduct a competency examination of a child. 15

The assessment of the credibility of witnesses is within the province of the trial court. 16 All
questions bearing on the credibility of witnesses are best addressed by the trial court by
virtue of its unique position to observe the crucial and often incommunicable evidence of the
witnesses’ deportment while testifying, something which is denied to the appellate court
because of the nature and function of its office. The trial judge has the unique advantage of
actually examining the real and testimonial evidence, particularly the demeanor of the
witnesses. Hence, the trial judge’s assessment of the witnesses’ testimonies and findings of
fact are accorded great respect on appeal. In the absence of any substantial reason to justify
the reversal of the trial court’s assessment and conclusion, like when no significant facts and
circumstances are shown to have been overlooked or disregarded, the reviewing court is
generally bound by the former’s findings. The rule is even more stringently applied if the
appellate court has concurred with the trial court.17

The appellant did not object to Carl’s competency as a witness. He did not attempt to adduce
evidence to challenge such competency by showing that the child was incapable of
perceiving events and of communicating his perceptions, or that he did not possess the basic
qualifications of a competent witness. After the Prosecution terminated its direct examination
of Carl, the appellant extensively tested his direct testimony on cross-examination. All that
the Defense did was to attempt to discredit the testimony of Carl, but not for once did the
Defense challenge his capacity to distinguish right from wrong, or to perceive, or to
communicate his perception to the trial court. Consequently, the trial judge favorably
determined the competency of Carl to testify against the appellant.

The appellant points to inconsistencies supposedly incurred by Carl. That is apparently not
disputed. However, it seems clear that whatever inconsistencies the child incurred in his
testimony did not concern the principal occurrence or the elements of the composite crime
charged but related only to minor and peripheral matters. As such, their effect on his
testimony was negligible, if not nil, because the inconsistencies did not negate the positive
identification of the appellant as the perpetrator. Also, that Carl did not shout to seek help
upon witnessing how the appellant had stabbed his mother to death did not destroy his
credibility. For sure, he could not be expected to act and to react to what happened like an
adult. Although children have different levels of intelligence and different degrees of
perception, the determination of their capacity to perceive and of their ability to communicate
their perception to the courts still pertained to the trial court, because it concerned a factual
issue and should not be disturbed on appeal in the absence of a strong showing of mistake
or misappreciation on the part of the trial court.18
It is true that an appeal in a criminal case like this one opens the record of the trial bare and
open. Even so, the finding of facts by the trial court are still entitled to great respect
especially when affirmed on appeal by the CA.19This great respect for such findings rests
mainly on the trial court’s direct and personal access to the witnesses while they testify in its
presence, giving them the unique opportunity to observe their manner and decorum during
intensive grilling by the counsel for the accused, and to see if the witnesses were fidgeting
and prevaricating, or sincere and trustworthy. With both the RTC and the CA sharing the
conviction on Carl’s credibility, his capacity to perceive and his ability to communicate his
perception, we cannot depart from their common conclusion. Moreover, according credence
to Carl’s testimony despite his tender age would not be unprecedented. In People v.
Mendiola,20the Court considered a 6-y ear-old victim competent, and regarded her testimony
against the accused credible. In Dulla v. Court of Appeals, 21 the testimony of the three-year-
old victim was deemed acceptable. As such, Carl’s testimony was entitled to full probative
weight.

Carl positively identified the appellant as the culprit during the investigation and during the
trial. Worthy to note is that the child could not have been mistaken about his identification of
him in view of his obvious familiarity with the appellant as a daily presence in the billiard
room maintained by the child’s family. Verily, the evidence on record overwhelmingly showed
that the appellant, and no other, had robbed and stabbed the victim.

The appellant contends that robbery was not proved beyond reasonable doubt; that to
sustain a conviction for robbery with homicide, the robbery itself must be proven as
conclusively as the other essential element of the crime; and that it was not established that
the taking of personal property was achieved by means of violence against or intimidation of
any person or by using force upon things.

The contention lacks persuasion.

To sustain a conviction for robbery with homicide, the Prosecution must prove the
concurrence of the following elements, namely: (1) the taking of personal property belonging
to another; (2) with intent to gain; (3) with the use of violence or intimidation against a
person; and (4) the crime of homicide, as used in the generic sense, was committed on the
occasion or by reason of the robbery.22 A conviction requires certitude that the robbery is the
main objective of the malefactor, and the killing is merely incidental to the robbery. 23

The CA has indicated that the appellant carried a long-bladed weapon. The fact that the
appellant was armed with the long-bladed weapon, which was undoubtedly a deadly
weapon, competently proved the presence of violence or intimidation against persons that
qualified the offense as robbery instead of theft. For sure, too, the patent intent of the
appellant was originally to commit robbery, with the homicide being committed only in the
course or on the occasion of the perpetration of the robbery. As the records show, Dennis
was awakened by someone shouting " Magnanakaw!" The shout was most probably made
by the victim, whom the appellant then stabbed in order to facilitate his escape. Considering
that the original criminal design to rob had been consummated with the taking of the money
amounting to ₱13,000.00, the killing of the victim under the circumstances rendered the
appellant guilty beyond reasonable doubt of robbery with homicide.

Robbery with homicide is a composite crime, also known as a special complex crime. It is
composed of two or more crimes but is treated by law as a single indivisible and unique
offense for being the product of one criminal impulse. It is a specific crime with a specific
penalty provided by law, and is to be distinguished from a compound or complex crime under
Article 48 of the Revised Penal Code.24 A composite crime is truly distinct and different from a
complex or compound crime. In a composite crime, the composition of the offenses is fixed
by law, but in a complex or compound crime, the combination of the offenses is not specified
but generalized, that is, grave and/or less grave, or one offense being the necessary means
to commit the other. In a composite crime, the penalty for the specified combination of crimes
is specific, but in a complex or compound crime the penalty is that corresponding to the most
serious offense, to be imposed in the maximum period. A light felony that accompanies the
commission of a complex or compound crime may be made the subject of a separate
information, but a light felony that accompanies a composite crime is absorbed.

The aggravating circumstances of dwelling and nighttime are not appreciated to raise the
penalty to be imposed because the information did not specifically allege them. But they
should be appreciated in order to justify the grant of exemplary damages to the heirs of the
victim in the amount of ₱30,000.00 in accordance with relevant jurisprudence.25 Under Article
2230 of the Civil Code, exemplary damages may be granted if at least one aggravating
circumstance attended the commission of the crime. The aggravating circumstance for this
purpose need not be specifically alleged in the information, and can be either a qualifying or
attendant circumstance. As expounded in People v. Catubig: 26

The term "aggravating circumstances" used by the Civil Code, the law not having specified
otherwise, is to be understood in its broad or generic sense. The commission of an offense
1âwp hi1

has a two-pronged effect, one on the public as it breaches the social order and the other
upon the private victim as it causes personal sufferings, each of which is addressed by,
respectively, the prescription of heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the penalty or a shift to a graver felony
underscores the exacerbation of the offense by the attendance of aggravating
circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability
which is basically a State concern, the award of damages, however, is likewise, if not
primarily, intended for the offended party who suffers thereby. It would make little sense for
an award of exemplary damages to be due the private offended party when the aggravating
circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to
the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary damages within the unbridled
meaning of Article 2230 of the Civil Code.27

In line with current jurisprudence,28 we increase the civil indemnity to

₱75,000.00, and the moral damages to ₱75,000.00.

In addition to the damages awarded by the CA, the appellant should be liable to pay the
heirs of the victim interest at the legal rate of 6% per annum on all the monetary awards for
damages from the date of the finality of this decision until the awards are fully paid.

WHEREFORE, the Court AFFIRMS the decision promulgated on July 23, 2010 subject to the
MODIFICATIONS that then accused-appellant ALVIN ESUGON y AVILA shall pay to the
heirs of the late Josephine Castro y Barrera civil indemnity of ₱75,000.00; moral damages of
₱75,000.00; exemplary damages of ₱30,000.00; temperate damages of ₱25,000.00; and
interest at the legal rate of 6% per annum on all monetary awards for damages reckoned
from the date of the finality of this decision until the awards are fully paid, plus the costs of
suit.
The accused-appellant is ORDERED to pay the costs of suit.

SO ORDERED.

G. R. No. 160188 June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,


vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead
insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in
its consummated stage of which he was convicted. The proposition rests on a common
theory expounded in two well-known decisions1 rendered decades ago by the Court of
Appeals, upholding the existence of frustrated theft of which the accused in both cases were
found guilty. However, the rationale behind the rulings has never been affirmed by this Court.

As far as can be told,2 the last time this Court extensively considered whether an accused
was guilty of frustrated or consummated theft was in 1918, in People v. Adiao. 3 A more
cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,4 and in 1984, in
Empelis v. IAC.5 This petition now gives occasion for us to finally and fully measure if or how
frustrated theft is susceptible to commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an
Information6 charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon
(Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and
Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart
(SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then
manning his post at the open parking area of the supermarket. Lago saw petitioner, who was
wearing an identification card with the mark "Receiving Dispatching Unit (RDU)," hauling a
push cart with cases of detergent of the well-known "Tide" brand. Petitioner unloaded these
cases in an open parking space, where Calderon was waiting. Petitioner then returned inside
the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic
and again unloaded these boxes to the same area in the open parking space. 7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed
it towards the parking space where Calderon was waiting. Calderon loaded the cartons of
Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago,
who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked
petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on
foot, but Lago fired a warning shot to alert his fellow security guards of the incident.
Petitioner and Calderon were apprehended at the scene, and the stolen merchandise
recovered.8 The filched items seized from the duo were four (4) cases of Tide Ultramatic, one
(1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an
aggregate value of ₱12,090.00.9

Petitioner and Calderon were first brought to the SM security office before they were
transferred on the same day to the Baler Station II of the Philippine National Police, Quezon
City, for investigation. It appears from the police investigation records that apart from
petitioner and Calderon, four (4) other persons were apprehended by the security guards at
the scene and delivered to police custody at the Baler PNP Station in connection with the
incident. However, after the matter was referred to the Office of the Quezon City Prosecutor,
only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in
Informations prepared on 20 May 1994, the day after the incident.10

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed
having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon
of 19 May 1994 when they were haled by Lago and his fellow security guards after a
commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of
the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied
by his neighbor, Leoncio Rosulada.11 As the queue for the ATM was long, Calderon and
Rosulada decided to buy snacks inside the supermarket. It was while they were eating that
they heard the gunshot fired by Lago, leading them to head out of the building to check what
was

transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile, petitioner testified during trial that he and his
cousin, a Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby
BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security
guard Lago fire a shot. The gunshot caused him and the other people at the scene to start
running, at which point he was apprehended by Lago and brought to the security office.
Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time
he and the others were brought to the Baler Police Station. At the station, petitioner denied
having stolen the cartons of detergent, but he was detained overnight, and eventually
brought to the prosecutor’s office where he was charged with theft. 14 During petitioner’s
cross-examination, he admitted that he had been employed as a "bundler" of GMS
Marketing, "assigned at the supermarket" though not at SM. 15

In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon
City, Branch 90, convicted both petitioner and Calderon of the crime of consummated theft.
They were sentenced to an indeterminate prison term of two (2) years of prision correccional
as minimum to seven (7) years of prision mayor as maximum. 17 The RTC found credible the
testimonies of the prosecution witnesses and established the convictions on the positive
identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief 19 with
the Court of Appeals, causing the appellate court to deem Calderon’s appeal as abandoned
and consequently dismissed. Before the Court of Appeals, petitioner argued that he should
only be convicted of frustrated theft since at the time he was apprehended, he was never
placed in a position to freely dispose of the articles stolen. 20 However, in its Decision dated
19 June 2003,21 the Court of Appeals rejected this contention and affirmed petitioner’s
conviction.22 Hence the present Petition for Review,23 which expressly seeks that petitioner’s
conviction "be modified to only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his
felonious intent and his actual participation in the theft of several cases of detergent with a
total value of ₱12,090.00 of which he was charged.25 As such, there is no cause for the Court
to consider a factual scenario other than that presented by the prosecution, as affirmed by
the RTC and the Court of Appeals. The only question to consider is whether under the given
facts, the theft should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites26 two decisions
rendered many years ago by the Court of Appeals: People v. Diño27 and People v.
Flores.28 Both decisions elicit the interest of this Court, as they modified trial court convictions
from consummated to frustrated theft and involve a factual milieu that bears similarity to the
present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet
the appellate court did not expressly consider the import of the rulings when it affirmed the
conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores
rulings since they have not yet been expressly adopted as precedents by this Court. For
whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before
us. Yet despite the silence on our part, Diño and Flores have attained a level of renown
reached by very few other appellate court rulings. They are comprehensively discussed in
the most popular of our criminal law annotations,29 and studied in criminal law classes as
textbook examples of frustrated crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that
populate criminal law exams more than they actually occur in real life. Indeed, if we finally
say that Diño and Flores are doctrinal, such conclusion could profoundly influence a
multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that
involves the thief having to exit with the stolen property through a supervised egress, such as
a supermarket checkout counter or a parking area pay booth, may easily call for the
application of Diño and Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Diño and Flores and the theories offered
therein on frustrated theft have borne some weight in our jurisprudential system. The time is
thus ripe for us to examine whether those theories are correct and should continue to
influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Diño and Flores, as well as the specific issues
relative to "frustrated theft," it is necessary to first refer to the basic rules on the three stages
of crimes under our Revised Penal Code.30

Article 6 defines those three stages, namely the consummated, frustrated and attempted
felonies. A felony is consummated "when all the elements necessary for its execution and
accomplishment are present." It is frustrated "when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator." Finally, it is
attempted "when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance."

Each felony under the Revised Penal Code has a "subjective phase," or that portion of the
acts constituting the crime included between the act which begins the commission of the
crime and the last act performed by the offender which, with prior acts, should result in the
consummated crime.31 After that point has been breached, the subjective phase ends and
the objective phase begins.32 It has been held that if the offender never passes the subjective
phase of the offense, the crime is merely attempted. 33 On the other hand, the subjective
phase is completely passed in case of frustrated crimes, for in such instances, "[s]ubjectively
the crime is complete."34

Truly, an easy distinction lies between consummated and frustrated felonies on one hand,
and attempted felonies on the other. So long as the offender fails to complete all the acts of
execution despite commencing the commission of a felony, the crime is undoubtedly in the
attempted stage. Since the specific acts of execution that define each crime under the
Revised Penal Code are generally enumerated in the code itself, the task of ascertaining
whether a crime is attempted only would need to compare the acts actually performed by the
accused as against the acts that constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates


an initial concession that all of the acts of execution have been performed by the offender.
The critical distinction instead is whether the felony itself was actually produced by the acts
of execution. The determination of whether the felony was "produced" after all the acts of
execution had been performed hinges on the particular statutory definition of the felony. It is
the statutory definition that generally furnishes the elements of each crime under the Revised
Penal Code, while the elements in turn unravel the particular requisite acts of execution and
accompanying criminal intent.

The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an
important characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act
for there to be a crime," and accordingly, there can be no crime when the criminal mind is
wanting.35 Accepted in this jurisdiction as material in crimes mala in se, 36mens rea has been
defined before as "a guilty mind, a guilty or wrongful purpose or criminal intent," 37 and
"essential for criminal liability."38 It follows that the statutory definition of our mala in se crimes
must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme
Court has comfortably held that "a criminal law that contains no mens rea requirement
infringes on constitutionally protected rights."39 The criminal statute must also provide for the
overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that
mens rea be shown; there must also be an actus reus. 40

It is from the actus reus and the mens rea, as they find expression in the criminal statute,
that the felony is produced. As a postulate in the craftsmanship of constitutionally sound
laws, it is extremely preferable that the language of the law expressly provide when the
felony is produced. Without such provision, disputes would inevitably ensue on the elemental
question whether or not a crime was committed, thereby presaging the undesirable and
legally dubious set-up under which the judiciary is assigned the legislative role of defining
crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive passage or term is embedded which attests
when the felony is produced by the acts of execution. For example, the statutory definition of
murder or homicide expressly uses the phrase "shall kill another," thus making it clear that
the felony is produced by the death of the victim, and conversely, it is not produced if the
victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code,
its elements are spelled out as follows:

Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain
but without violence against or intimidation of persons nor force upon things, shall take
personal property of another without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove
or make use of the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or
which belongs to another and without the consent of its owner, shall hunt or fish upon the
same or shall gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly
idiosyncratic means by which theft may be committed. 41 In the present discussion, we need
to concern ourselves only with the general definition since it was under it that the prosecution
of the accused was undertaken and sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft ─ the taking of personal property of
another. It is also clear from the provision that in order that such taking may be qualified as
theft, there must further be present the descriptive circumstances that the taking was with
intent to gain; without force upon things or violence against or intimidation of persons; and it
was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308
of the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done with intent to gain; (4) that the
taking be done without the consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or force upon things.42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under
early Roman law as defined by Gaius, was so broad enough as to encompass "any kind of
physical handling of property belonging to another against the will of the owner," 43 a definition
similar to that by Paulus that a thief "handles (touches, moves) the property of
another."44 However, with the Institutes of Justinian, the idea had taken hold that more than
mere physical handling, there must further be an intent of acquiring gain from the object,
thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam
usus ejus possessinisve."45 This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.46

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief
that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled
with "the intent to appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the thing."47 However, a conflicting line of
cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in
the taking48 or an intent to permanently deprive the owner of the stolen property; 49 or that
there was no need for permanency in the taking or in its intent, as the mere temporary
possession by the offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court adopted the
latter thought that there was no need of an intent to permanently deprive the owner of his
property to constitute an unlawful taking.51

So long as the "descriptive" circumstances that qualify the taking are present, including
animo lucrandi and apoderamiento, the completion of the operative act that is the taking of
personal property of another establishes, at least, that the transgression went beyond the
attempted stage. As applied to the present case, the moment petitioner obtained physical
possession of the cases of detergent and loaded them in the pushcart, such seizure
motivated by intent to gain, completed without need to inflict violence or intimidation against
persons nor force upon things, and accomplished without the consent of the SM Super Sales
Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would
have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to
apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision,
the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily
sufficient to produce theft as a consequence, "do not produce [such theft] by reason of
causes independent of the will of the perpetrator." There are clearly two determinative
factors to consider: that the felony is not "produced," and that such failure is due to causes
independent of the will of the perpetrator. The second factor ultimately depends on the
evidence at hand in each particular case. The first, however, relies primarily on a doctrinal
definition attaching to the individual felonies in the Revised Penal Code 52 as to when a
particular felony is "not produced," despite the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to


inquire as to how exactly is the felony of theft "produced." Parsing through the statutory
definition of theft under Article 308, there is one apparent answer provided in the language of
the law — that theft is already "produced" upon the "tak[ing of] personal property of another
without the latter’s consent."

U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged
with theft after he abstracted a leather belt from the baggage of a foreign national and
secreted the item in his desk at the Custom House. At no time was the accused able to "get
the merchandise out of the Custom House," and it appears that he "was under observation
during the entire transaction."54 Based apparently on those two circumstances, the trial court
had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither
circumstance was decisive, and holding instead that the accused was guilty of consummated
theft, finding that "all the elements of the completed crime of theft are present." 55 In support
of its conclusion that the theft was consummated, the Court cited three (3) decisions of the
Supreme Court of Spain, the discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was
in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was
at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial
court did not err [x x x ] in considering the crime as that of consummated theft instead of
frustrated theft inasmuch as nothing appears in the record showing that the policemen who
saw the accused take the fruit from the adjoining land arrested him in the act and thus
prevented him from taking full possession of the thing stolen and even its utilization by him
for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a
church. The latter on account of the solemnity of the act, although noticing the theft, did not
do anything to prevent it. Subsequently, however, while the defendant was still inside the
church, the offended party got back the money from the defendant. The court said that the
defendant had performed all the acts of execution and considered the theft as consummated.
(Decision of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up
a case, and from the case took a small box, which was also opened with a key, from which in
turn he took a purse containing 461 reales and 20 centimos, and then he placed the money
over the cover of the case; just at this moment he was caught by two guards who were
stationed in another room near-by. The court considered this as consummated robbery, and
said: "[x x x] The accused [x x x] having materially taken possession of the money from the
moment he took it from the place where it had been, and having taken it with his hands with
intent to appropriate the same, he executed all the acts necessary to constitute the crime
which was thereby produced; only the act of making use of the thing having been frustrated,
which, however, does not go to make the elements of the consummated crime." (Decision of
the Supreme Court of Spain, June 13, 1882.)56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that
the criminal actors in all these cases had been able to obtain full possession of the personal
property prior to their apprehension. The interval between the commission of the acts of theft
and the apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to
the very moment the thief had just extracted the money in a purse which had been stored as
it was in the 1882 decision; and before the thief had been able to spirit the item stolen from
the building where the theft took place, as had happened in Adiao and the 1897 decision.
Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts
in each of those cases was consummated by the actual possession of the property belonging
to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of
frustrated rather than consummated theft. The case is People v. Sobrevilla, 57 where the
accused, while in the midst of a crowd in a public market, was already able to abstract a
pocketbook from the trousers of the victim when the latter, perceiving the theft, "caught hold
of the [accused]’s shirt-front, at the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was afterwards caught by a
policeman."58 In rejecting the contention that only frustrated theft was established, the Court
simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the
pocket-book, and that determines the crime of theft. If the pocket-book was afterwards
recovered, such recovery does not affect the [accused’s] criminal liability, which arose from
the [accused] having succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in
the latter, in that the fact that the offender was able to succeed in obtaining physical
possession of the stolen item, no matter how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the
position of petitioner in this case. Yet to simply affirm without further comment would be
disingenuous, as there is another school of thought on when theft is consummated, as
reflected in the Diño and Flores decisions.

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years
before Flores. The accused therein, a driver employed by the United States Army, had driven
his truck into the port area of the South Harbor, to unload a truckload of materials to waiting
U.S. Army personnel. After he had finished unloading, accused drove away his truck from
the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by
an M.P. who inspected the truck and found therein three boxes of army rifles. The accused
later contended that he had been stopped by four men who had loaded the boxes with the
agreement that they were to meet him and retrieve the rifles after he had passed the
checkpoint. The trial court convicted accused of consummated theft, but the Court of
Appeals modified the conviction, holding instead that only frustrated theft had been
committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let
the boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had
already unloaded its cargo inside the depot, it would be allowed to pass through the check
point without further investigation or checking."60 This point was deemed material and
indicative that the theft had not been fully produced, for the Court of Appeals pronounced
that "the fact determinative of consummation is the ability of the thief to dispose freely of the
articles stolen, even if it were more or less momentary." 61 Support for this proposition was
drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888
decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la


consumacion del delito de hurto es preciso que so haga en circunstancias tales que
permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos
momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin materializar demasiado
el acto de tomar la cosa ajena.62

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the
control and disposal of the culprits, the articles stolen must first be passed through the M.P.
check point, but since the offense was opportunely discovered and the articles seized after
all the acts of execution had been performed, but before the loot came under the final control
and disposal of the looters, the offense can not be said to have been fully consummated, as
it was frustrated by the timely intervention of the guard. The offense committed, therefore, is
that of frustrated theft.63

Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen
at the time of apprehension is determinative as to whether the theft is consummated or
frustrated. This theory was applied again by the Court of Appeals some 15 years later, in
Flores, a case which according to the division of the court that decided it, bore "no
substantial variance between the circumstances [herein] and in [Diño]." 64 Such conclusion is
borne out by the facts in Flores. The accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver
who had loaded the purportedly empty sea van onto his truck at the terminal of the
stevedoring company. The truck driver proceeded to show the delivery receipt to the guard
on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and
discovered that the "empty" sea van had actually contained other merchandise as well. 65 The
accused was prosecuted for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals, accused argued in the
alternative that he was guilty only of attempted theft, but the appellate court pointed out that
there was no intervening act of spontaneous desistance on the part of the accused that
"literally frustrated the theft." However, the Court of Appeals, explicitly relying on Diño, did
find that the accused was guilty only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to distinguish
that case from Diño, citing a "traditional ruling" which unfortunately was not identified in the
decision itself. However, the Court of Appeals pointed out that the said "traditional ruling"
was qualified by the words "is placed in a situation where [the actor] could dispose of its
contents at once."66 Pouncing on this qualification, the appellate court noted that "[o]bviously,
while the truck and the van were still within the compound, the petitioner could not have
disposed of the goods ‘at once’." At the same time, the Court of Appeals conceded that
"[t]his is entirely different from the case where a much less bulk and more common thing as
money was the object of the crime, where freedom to dispose of or make use of it is palpably
less restricted,"67 though no further qualification was offered what the effect would have been
had that alternative circumstance been present instead.

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to
whether the crime of theft was produced is the ability of the actor "to freely dispose of the
articles stolen, even if it were only momentary." Such conclusion was drawn from an 1888
decision of the Supreme Court of Spain which had pronounced that in determining whether
theft had been consummated, "es preciso que so haga en circunstancias tales que permitan
al sustractor de aquella, siquiera sea mas o menos momentaneamente." The qualifier
"siquiera sea mas o menos momentaneamente" proves another important consideration, as
it implies that if the actor was in a capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated. Such circumstance was not
present in either Diño or Flores, as the stolen items in both cases were retrieved from the
actor before they could be physically extracted from the guarded compounds from which the
items were filched. However, as implied in Flores, the character of the item stolen could lead
to a different conclusion as to whether there could have been "free disposition," as in the
case where the chattel involved was of "much less bulk and more common x x x, [such] as
money x x x."68

In his commentaries, Chief Justice Aquino makes the following pointed observation on the
import of the Diño ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to
freely dispose of the stolen articles even if it were more or less momentary. Or as stated in
another case[69 ], theft is consummated upon the voluntary and malicious taking of property
belonging to another which is realized by the material occupation of the thing whereby the
thief places it under his control and in such a situation that he could dispose of it at once.
This ruling seems to have been based on Viada’s opinion that in order the theft may be
consummated, "es preciso que se haga en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases,
also states that "[i]n theft or robbery the crime is consummated after the accused had
material possession of the thing with intent to appropriate the same, although his act of
making use of the thing was frustrated."72

There are at least two other Court of Appeals rulings that are at seeming variance with the
Diño and Flores rulings. People v. Batoon73 involved an accused who filled a container with
gasoline from a petrol pump within view of a police detective, who followed the accused onto
a passenger truck where the arrest was made. While the trial court found the accused guilty
of frustrated qualified theft, the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x and
U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to
consummate the crime of theft."74

In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply
depot and loaded them onto a truck. However, as the truck passed through the checkpoint,
the stolen items were discovered by the Military Police running the checkpoint. Even though
those facts clearly admit to similarity with those in Diño, the Court of Appeals held that the
accused were guilty of consummated theft, as the accused "were able to take or get hold of
the hospital linen and that the only thing that was frustrated, which does not constitute any
element of theft, is the use or benefit that the thieves expected from the commission of the
offense."76

In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen
the meaning of an element of a felony is controversial, there is bound to arise different
rulings as to the stage of execution of that felony."77 Indeed, we can discern from this survey
of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled.
It fact, given the disputed foundational basis of the concept of frustrated theft itself, the
question can even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this
Court’s 1984 decision in Empelis v. IAC.78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused
were surprised by the owner within the plantation as they were carrying with them the
coconuts they had gathered. The accused fled the scene, dropping the coconuts they had
seized, and were subsequently arrested after the owner reported the incident to the police.
After trial, the accused were convicted of qualified theft, and the issue they raised on appeal
was that they were guilty only of simple theft. The Court affirmed that the theft was qualified,
following Article 310 of the Revised Penal Code, 79 but further held that the accused were
guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was
consummated or frustrated was raised by any of the parties. What does appear, though, is
that the disposition of that issue was contained in only two sentences, which we reproduce in
full:
However, the crime committed is only frustrated qualified theft because petitioners were not
able to perform all the acts of execution which should have produced the felony as a
consequence. They were not able to carry the coconuts away from the plantation due to the
timely arrival of the owner.80

No legal reference or citation was offered for this averment, whether Diño, Flores or the
Spanish authorities who may have bolstered the conclusion. There are indeed evident
problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors "were not able to perform
all the acts of execution which should have produced the felon as a
consequence."81 However, per Article 6 of the Revised Penal Code, the crime is frustrated
"when the offender performs all the acts of execution," though not producing the felony as a
result. If the offender was not able to perform all the acts of execution, the crime is
attempted, provided that the non-performance was by reason of some cause or accident
other than spontaneous desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of
the owner. However, following Article 6 of the Revised Penal Code, these facts should elicit
the conclusion that the crime was only attempted, especially given that the acts were not
performed because of the timely arrival of the owner, and not because of spontaneous
desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present
petition. Even if the two sentences we had cited actually aligned with the definitions provided
in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product
of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the
passage is offered as if it were sourced from an indubitable legal premise so settled it
required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on
theft. Indeed, we cannot see how Empelis can contribute to our present debate, except for
the bare fact that it proves that the Court had once deliberately found an accused guilty of
frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its
doctrinal value is extremely compromised by the erroneous legal premises that inform it, and
also by the fact that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is
viable in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated
theft, it cannot present any efficacious argument to persuade us in this case. Insofar as
Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction,
that decision is subject to reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España
was then in place. The definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en
las cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren
co intención de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los
casos previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611;
613; Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and
several times thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft
is now simply defined as "[e]l que, con ánimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado" 82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre
disposicion" of the property is not an element or a statutory characteristic of the crime. It
does appear that the principle originated and perhaps was fostered in the realm of Spanish
jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on
the 1870 Codigo Penal de España. Therein, he raised at least three questions for the reader
whether the crime of frustrated or consummated theft had occurred. The passage cited in
Diño was actually utilized by Viada to answer the question whether frustrated or
consummated theft was committed "[e]l que en el momento mismo de apoderarse de la cosa
ajena, viéndose sorprendido, la arroja al suelo."83 Even as the answer was as stated in Diño,
and was indeed derived from the 1888 decision of the Supreme Court of Spain, that
decision’s factual predicate occasioning the statement was apparently very different from
Diño, for it appears that the 1888 decision involved an accused who was surprised by the
employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and
who then proceeded to throw away the garment as he fled. 84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites
decisions of the Supreme Court of Spain that have held to that effect. 85 A few decades later,
the esteemed Eugenio Cuello Calón pointed out the inconsistent application by the Spanish
Supreme Court with respect to frustrated theft.

Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los
sacos de harino del carro que los conducia a otro que tenían preparado, 22 febrero 1913;
cuando el resultado no tuvo efecto por la intervención de la policia situada en el local donde
se realizó la sustracción que impidió pudieran los reos disponer de lo sustraído, 30 de
octubre 1950. Hay "por lo menos" frustración, si existe apoderamiento, pero el culpale no
llega a disponer de la cosa, 12 abril 1930; hay frustración "muy próxima" cuando el culpable
es detenido por el perjudicado acto seguido de cometer la sustracción, 28 febrero 1931.
Algunos fallos han considerado la existencia de frustración cuando, perseguido el culpable o
sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22
febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos, conforme a lo antes
expuesto, son hurtos consumados.86

Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la


cosa queda de hecho a la disposición del agente. Con este criterio coincide la doctrina
sentada últimamente porla jurisprudencia española que generalmente considera consumado
el hurto cuando el culpable coge o aprehende la cosa y ésta quede por tiempo más o menos
duradero bajo su poder. El hecho de que éste pueda aprovecharse o no de lo hurtado es
indiferente. El delito no pierde su carácter de consumado aunque la cosa hurtada sea
devuelta por el culpable o fuere recuperada. No se concibe la frustración, pues es muy dificil
que el que hace cuanto es necesario para la consumación del hurto no lo consume
efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos
frustrados son verdaderos delitos consumados.87 (Emphasis supplied)

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with
replicating the Spanish Supreme Court decisions on the matter, Cuello Calón actually set
forth his own thought that questioned whether theft could truly be frustrated, since "pues es
muy dificil que el que hace cuanto es necesario para la consumación del hurto no lo
consume efectivamente." Otherwise put, it would be difficult to foresee how the execution of
all the acts necessary for the completion of the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly
thought that obliges us to accept frustrated theft, as proposed in Diño and Flores. A final
ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to
scholastic pariah, for such a submission is hardly heretical in light of Cuello Calón’s position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question
from a fresh perspective, as we are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is capable of commission in its
frustrated stage. Further, if we ask the question whether there is a mandate of statute or
precedent that must compel us to adopt the Diño and Flores doctrines, the answer has to be
in the negative. If we did so, it would arise not out of obeisance to an inexorably higher
command, but from the exercise of the function of statutory interpretation that comes as part
and parcel of judicial review, and a function that allows breathing room for a variety of
theorems in competition until one is ultimately adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province
of the legislature, through statute, to define what constitutes a particular crime in this
jurisdiction. It is the legislature, as representatives of the sovereign people, which determines
which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws
should be aligned with what was the evident legislative intent, as expressed primarily in the
language of the law as it defines the crime. It is Congress, not the courts, which is to define a
crime, and ordain its punishment.88 The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a crime in a manner
that does not hew to the statutory language. Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal
laws where a "narrow interpretation" is appropriate. "The Court must take heed of language,
legislative history and purpose, in order to strictly determine the wrath and breath of the
conduct the law forbids."89

With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the
offender to freely dispose of the property stolen is not a constitutive element of the crime of
theft. It finds no support or extension in Article 308, whether as a descriptive or operative
element of theft or as the mens rea or actus reus of the felony. To restate what this Court
has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished without the use of
violence against or intimidation of persons or force upon things. 90

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent
to gain, of personal property of another without the latter’s consent. While
the Diño/Flores dictum is considerate to the mindset of the offender, the statutory definition
of theft considers only the perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated
stage, the question is again, when is the crime of theft produced? There would be all but
certain unanimity in the position that theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once having committed all the acts
of execution for theft, is able or unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquino’s commentaries, as earlier cited, that "[i]n theft
or robbery the crime is consummated after the accused had material possession of the thing
with intent to appropriate the same, although his act of making use of the thing was
frustrated."91

It might be argued, that the ability of the offender to freely dispose of the property stolen
delves into the concept of "taking" itself, in that there could be no true taking until the actor
obtains such degree of control over the stolen item. But even if this were correct, the effect
would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean
that not all the acts of execution have not been completed, the "taking not having been
accomplished." Perhaps this point could serve as fertile ground for future discussion, but our
concern now is whether there is indeed a crime of frustrated theft, and such consideration
proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts
of this particular case. We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired physical possession of
the stolen cases of detergent for a considerable period of time that he was able to drop these
off at a spot in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete
from the moment the offender gains possession of the thing, even if he has no opportunity to
dispose of the same.92 And long ago, we asserted in People v. Avila:93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be
appropriated into the physical power of the thief, which idea is qualified by other conditions,
such as that the taking must be effected animo lucrandi and without the consent of the
owner; and it will be here noted that the definition does not require that the taking should be
effected against the will of the owner but merely that it should be without his consent, a
distinction of no slight importance.94

Insofar as we consider the present question, "unlawful taking" is most material in this
respect. Unlawful taking, which is the deprivation of one’s personal property, is the element
which produces the felony in its consummated stage. At the same time, without unlawful
taking as an act of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal
Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.

Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the
offenders therein obtained possession over the stolen items, the effect of the felony has
been produced as there has been deprivation of property. The presumed inability of the
offenders to freely dispose of the stolen property does not negate the fact that the owners
have already been deprived of their right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule —that the inability of the
offender to freely dispose of the stolen property frustrates the theft — would introduce a
convenient defense for the accused which does not reflect any legislated intent, 95 since the
Court would have carved a viable means for offenders to seek a mitigated penalty under
applied circumstances that do not admit of easy classification. It is difficult to formulate
definite standards as to when a stolen item is susceptible to free disposal by the thief. Would
this depend on the psychological belief of the offender at the time of the commission of the
crime, as implied in Diño?

Or, more likely, the appreciation of several classes of factual circumstances such as the size
and weight of the property, the location of the property, the number and identity of people
present at the scene of the crime, the number and identity of people whom the offender is
expected to encounter upon fleeing with the stolen property, the manner in which the stolen
item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or
edibility of the stolen item would come into account, relevant as that would be on whether
such property is capable of free disposal at any stage, even after the taking has been
consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail,
the owner was indeed deprived of property by one who intended to produce such deprivation
for reasons of gain. For such will remain the presumed fact if frustrated theft were
recognized, for therein, all of the acts of execution, including the taking, have been
completed. If the facts establish the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the attempted stage, as not all
of the acts of execution have been performed. But once all these acts have been executed,
the taking has been completed, causing the unlawful deprivation of property, and ultimately
the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do
not align with the legislated framework of the crime of theft. The Revised Penal Code
provisions on theft have not been designed in such fashion as to accommodate said rulings.
Again, there is no language in Article 308 that expressly or impliedly allows that the "free
disposition of the items stolen" is in any way determinative of whether the crime of theft has
been produced. Diño itself did not rely on Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately content in relying on Diño alone for legal
support. These cases do not enjoy the weight of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave them susceptible to reversal. The same
holds true of Empilis, a regrettably stray decision which has not since found favor from this
Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft.
As petitioner has latched the success of his appeal on our acceptance of the Diño and Flores
rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction.
That it has taken all these years for us to recognize that there can be no frustrated theft
under the Revised Penal Code does not detract from the correctness of this conclusion. It
will take considerable amendments to our Revised Penal Code in order that frustrated theft
may be recognized. Our deference to Viada yields to the higher reverence for legislative
intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

G.R. No. 209227

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
CHARLIE OROSCO, Accused-Appellant.

DECISION

VILLARAMA, JR., J.:

On appeal is the Decision1 dated March 22, 2013 of the Court of Appeals (CA) in CA-G.R.
CR-HC No. 05171 which affirmed the Decision2 dated June 24, 2011 of the Regional Trial
Court of Legazpi City, Branch 10 finding the accused-appellant Charlie Orosco guilty of the
crime of Robbery with Homicide.

Appellant, along with Abner Astor, "John Doe" and "Peter Doe," were charged with Robbery
with Homicide defined and penalized under Article 294 of the Revised Penal Code, as
amended. The Information reads as follows:

That on or about the 16th day of May, 2006, in the City of Legazpi, Philippines, and within
the jurisdiction of this Honorable Court, the above- named accused, conspiring,
confederating and helping one another, with intent of gain and by means of violence, did
then and there [willfully], unlawfully, feloniously and forcibly enter the store owned by one
Lourdes Yap situated at Purok 4, Barangay Rawis, Legazpi City, and once inside said store,
take, steal and carry away cash money, to the damage and prejudice of said Lourdes Yap,
and by reason of or on occasion of said robbery, and for the purpose of enabling them to
take, steal and carry away the aforesaid cash money in pursuance of their conspiracy, did
then and there [willfully], unlawfully and feloniously and taking advantage of their superior
strength and with intent to kill, attack, assault and stab the aforesaid Lourdes Yap, thereby
inflicting upon her injury which directly caused her untimely death, to the damage and
prejudice of her legal heirs.

CONTRARY TO LAW.3

The factual scenario presented by the prosecution is based on the eyewitness account of
Albert M. Arca (Arca), the postmortem findings of Sr. Pol. Chief Insp. Dr. James Margallo
Belgira who conducted the autopsy on the cadaver of the victim, and the victim’s grandson,
Ryan Francis Yap.

Arca testified that on May 16, 2006, about one o’clock in the afternoon, he went to the store
of Lourdes Yap (Yap) at Purok 4, Barangay Rawis, Legazpi City. He was buying ice but it
was not yet hardened (frozen) so he went home. At around two o’clock, he was again sent
on errand to buy ice at the same store. After purchasing the ice, he noticed there was a
verbal tussle between Yap and two male customers. The men were arguing that they were
given insufficient change and insisting they gave a P500 bill and not P100. When Yap
opened the door, the two men entered the store. From outside the store and thru its open
window grills, he saw one of the men placed his left arm around the neck of Yap and covered
her mouth with his right hand while the other man was at her back restraining her hands. He
recognized the man who was holding the hands of Yap as Charlie Orosco (appellant), while
he described the man who covered her mouth as thin, with less hair and dark complexion.
The latter stabbed Yap at the center of her chest. When they released her, she fell down on
the floor. Appellant then took a thick wad of bills from the base of the religious icon or "santo"
at the altar infront of the store’s window, after which he and the man who stabbed Yap fled
together with two other men outside who acted as lookouts. Arca went near the bloodied
victim but also left and went home afraid because he was seen by one of the lookouts. 4

Yap was brought to the Aquinas University Hospital but she was declared dead on arrival.
Later, at the National Bureau of Investigation (NBI) Legazpi City District office, Arca gave
descriptions of the faces of appellant and the dark thin man who stabbed Yap ("John Doe").
From a surveillance digital photo and video clip shown to him, Arca positively identified
Abner Astor (Astor) as one of the two men sitting beside the store as lookouts.
Consequently, warrants of arrest were issued against appellant and Astor. But only appellant
was arrested as Astor, John Doe and Peter Doe remained at large.

Dr. Belgira affirmed the findings in his Medico-Legal Report5 stating:

TRUNK:

1)Stab wound, left anterior costal region, measuring 2 x 0.5 cm, 5 cm from the anterior
midline, 9 cm deep. The wound tract is directed posteriorwards, upwards and medialwards,
cutting the sixth anterior thoracic rib and piercing the heart.

CONCLUSION:

The cause of death is hemorrhagic shock secondary to a stab wound of the trunk.

He explained that it was possible that the lone stab wound caused by a sharp object, such as
a knife, was inflicted while the victim was standing, and found no other injuries such as
defense wounds.6

For his defense, appellant testified that on the date and time of the incident, he was at his
house in Bigaa taking care of his three-year-old child while his wife was washing clothes. He
stayed in the house until his wife finished the laundry at past 3:00 p.m. He denied knowing
Yap and his co- accused Astor. While he admitted that he was a resident of Purok 4, Bgy.
Rawis, his family transferred to their other house at Bigaa. He denied knowing Arca and he
does not know of any motive for Arca to testify against him. He worked in a copra company
in Lidong but stopped reporting for work after May 16, 2006 as he was selling fish. He was
arrested by the police at the rotunda in Legazpi when he was buying medicine for his sick
child.7

Appellant’s wife, Teresa Magdaong-Orosco also testified to confirm that at the time of the
incident he was at their house while she was doing the laundry just adjacent to their house.
On cross-examination, she was asked the distance between their place and Bgy. Rawis and
she replied that it will take less than one hour from Bigaa to Rawis. 8

On June 24, 2011, the trial court rendered judgment convicting appellant of the crime
charged, thus:

WHEREFORE, above premises considered, the Court hereby finds accused Charlie Orosco
GUILTY of the crime of robbery with homicide. He is hereby sentenced to suffer the penalty
of reclusion perpetua, to pay the heirs of Lourdes Yap P75,000.00 as civil indemnity for the
fact of death, P75,000.00 as moral damages and P30,000.00 as exemplary damages.

Insofar as the other accused is concerned, the case is hereby sent to the archives, pending
their eventual arrest.

SO ORDERED.9

Appellant went to the CA but his appeal was dismissed. The CA upheld his conviction as it
found no compelling reason to deviate from the factual findings and conclusions of the trial
court.

In this petition, appellant reiterates the arguments he raised before the CA that the trial court
erred in giving credit to the uncorroborated eyewitness testimony of Arca who could not point
to him during the trial, and that even granting that criminal charges may be imputed against
him, it should only be robbery and not the complex crime of robbery with homicide
considering the fact that it was not him who stabbed Yap.

The appeal lacks merit.

It is settled that witnesses are to be weighed not numbered, such that the testimony of a
single, trustworthy and credible witness could be sufficient to convict an accused. The
testimony of a sole witness, if found convincing and credible by the trial court, is sufficient to
support a finding of guilt beyond reasonable doubt. Corroborative evidence is necessary only
when there are reasons to warrant the suspicion that the witness falsified the truth or that his
observation had been inaccurate.10

In this case, both the trial and appellate courts found the testimony of the lone eyewitness,
Arca, convincing notwithstanding that he was quite slow in narrating the incident to the court
and that he initially desisted from physically pointing to appellant as the one who held Yap’s
hands from behind and took her money at the store after she was stabbed by appellant’s
cohort (John Doe).

In his direct examination, Arca named appellant as one of those who robbed and killed Yap
but refused to pinpoint him in open court, thus:

ACP NUQUI x x x x

Q.This person who was holding the hands of Lourdes Yap, were you able to identify him?

A.Yes, sir.

Q.Do you know the name of this person?


A.Yes, sir. He is Charlie.

Q.Do you know the family name?

A.Orosco, sir.

Q.If this Charlie Orosco whom you said was then holding the hands of Lourdes Yap, if he is
in Court, would you please point to him?

WITNESS (answering)

A.Yes, sir.

Q.Please look around you and point at him.

A.He is here.

Q.If he is in Court, please point at him.

Q.Why can’t you point at him? COURT INTERPRETER

At this juncture, the witness is somewhat trembling. ACP NUQUI

Oh, you see. ATTY. BAÑARES

The witness can not answer. ACP NUQUI

By the look of the witness, Your Honor, he is afraid. Perhaps….

xxxx

ACP NUQUI (continuing)

Q.Please point at him.

ATTY. BAÑARES

We have already foreseen the witness to pinpoint at anyone. ACP NUQUI

No. He said that the…. ATTY. BAÑARES

Then, let him voluntarily do it. ACP NUQUI

Okay.

ATTY. BAÑARES

Your Honor, I move that the prosecutor will transfer to another question because we keep on
waiting already.
ACP NUQUI

Your Honor, it is understandable that even he is slow, he keeps on glancing at the person.

COURT

Observations are all noted.

xxxx

ACP NUQUI

At this point, Your Honor, I would like to make of record that when it comes to the person of
Charlie Orosco, Your Honor, he stopped and did not say ---- he did not nod or do anything of
what he has been doing when the other persons were identified.

COURT

Okay. Noted.11

Arca continued with his testimony on how Yap was stabbed by appellant’s companion and
appellant taking the thick wad of P1,000 bills before fleeing along with the two lookouts.
When asked for the fourth time to pinpoint appellant, Arca was still hesitant:Q.Now, is this
Charlie Orosco here in Court?

A.Yes, sir, he is around.

Q.This person who took the money or Charlie Orosco you said "he is in Court," will you
please look at him.

xxxx

ACP NUQUI (continuing)

Q.Is he now in Court?

A.Yes, sir.

Q.Please point at him. ATTY BAÑARES

The same observation, Your Honor. COURT

Oh, the same observation? ACP NUQUI

Yes, Your Honor, he is hesitant. It is understandable because he is afraid.

xxxx

COURT (to the witness)


Q.Why can you not point at Charlie Orosco who according to you he is inside the
Court?

WITNESS (answering)

A.I can’t afford to point at him.

ACP NUQUI (to the witness)

Q.Why?

A. I am afraid.

COURT

He can not because he is afraid.12 (Emphasis supplied)

At the next hearing, Arca was recalled to the witness stand and this time he was able to
pinpoint appellant as among those persons who robbed and killed Yap, thus:

PROSECUTOR NUQUI

Q- You mentioned that you saw two (2) persons talking to Lourdes Yap. Who are these
persons you are referring to?

ATTY. CHAN

Your Honor please, we are again registering our objection.

COURT

Witness may answer.

WITNESS

A- Charlie Orosco and a certain thin person.

PROSECUTOR NUQUI

Q- Why are you able to say that Charlie Orosco was one of the persons talking, how long
have you known Charlie Orosco?

A- He always go with a fisherman and act as helper and because of that I know him.

xxxx

PROSECUTOR NUQUI

Q- You mentioned that you have long known Charlie Orosco. Will you look around and
point to him if he is in Court?
INTERPRETER

At this juncture, the witness is pointing to a man wearing a yellow T-shirt with handcuff
and when asked answered by the name of Charlie Orosco.

PROSECUTOR NUQUI

No further questions Your Honor.13

Assessing the identification made by Arca, the trial court concluded that he had positively
identified appellant as one of the perpetrators of the robbery and killing of Yap, viz:

Here, Albert Arca, the prosecution’s main witness, positively identified accused Orosco as
one of [the] two men who robbed and killed Lourdes Yap on that fateful day. As observed by
the trial court during the bail hearings, when asked to identify one of the men who robbed
and killed the victim, Arca was trembling and constantly looking towards the direction of
accused Orosco. Though simple-minded, Arca was well-aware of the possible consequences
his testimony could trigger. To the Court’s mind, Arca’s act of constantly looking towards
Orosco’s direction whenever he was asked to point out one of the culprits, is a mute but
eloquent manner of identifying Orosco as one of the perpetrators of the crime. As such,
Arca’s act is sufficient identification already.

Later, when Arca was recalled to the stand to answer some additional questions, he was
able to gather enough courage to point out to Orosco as the man who held the hands of
Lourdes Yap while his companion stabbed her. Arca stated that he was hesitant to identify
and point out accused earlier because he feared what Orosco might do to him. Incidentally,
both Orosco and his wife stated that they do know neither Albert Arca nor Lourdes Yap.
Thus, it appears that there is no reason whatsoever for Arca to lie and attribute the crime to
Orosco. Following settled jurisprudence, Arca’s positive identification of Orosco prevails over
the latter’s alibi.14

We find no compelling or cogent reason to deviate from the findings of the trial court on its
evaluation of Arca’s testimony. The well-settled rule in this jurisdiction is that the trial court’s
findings on the credibility of witnesses are entitled to the highest degree of respect and will
not be disturbed on appeal without any clear showing that it overlooked, misunderstood or
misapplied some facts or circumstances of weight or substance which could affect the result
of the case.15

Appellant repeatedly harped on the hesitation of Arca to point to him at the trial. However, as
the trial court’s firsthand observation of said witness’ deportment revealed, Arca’s fear of
appellant sufficiently explains his initial refusal to point to him in open court during his direct
examination. Arca was finally able to point to appellant as one of the perpetrators of the
robbery and killing of Yap during his additional direct examination when he had apparently
mustered enough courage to do so.

Robbery with homicide is defined under Article 294 of the Revised Penal Code, as amended,
which provides in part:

Art. 294. Robbery with violence against or intimidation of persons – Penalties. – Any person
guilty of robbery with the use of violence against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery,
the crime of homicide shall have been committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson.

The elements of the crime of robbery with homicide are: (1) the taking of personal property is
committed with violence or intimidation against persons; (2) the property taken belongs to
another; (3) the taking is done with animo lucrandi; and (4) by reason of the robbery or on
the occasion thereof, homicide (used in its generic sense) is committed. 16 Homicide is said to
have been committed by reason or on the occasion of robbery if it is committed (a) to
facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit
of the loot; (c) to prevent discovery of the commission of the robbery; or (d) to eliminate
witnesses to the commission of the crime. 17In robbery with homicide, the original criminal
design of the malefactor is to commit robbery, with homicide perpetrated on the occasion or
by reason of the robbery. The intent to commit robbery must precede the taking of human
life. The homicide may take place before, during or after the robbery.18

Here, the homicide was committed by reason of or on the occasion of the robbery as
appellant and John Doe had to kill Yap to accomplish their main objective of stealing her
money. The earlier verbal tussle where the two pretended to have paid a greater amount and
asked for the correct change was just a ploy to get inside the store where the victim kept her
earnings. To verify whether the cash payment was indeed a P500 or P100 bill, the victim let
them enter the store but once inside they got hold of her and stabbed her. Appellant,
however, argues that if he had committed any offense, it was only robbery since Arca
testified that it was John Doe, whom he described as a thin man, who stabbed the victim.

We disagree.

The evidence presented by the prosecution clearly showed that appellant acted in
conspiracy with his co-accused. Appellant and John Doe first engaged the unsuspecting
victim in a verbal altercation until she allowed them to enter the store. Upon getting inside,
they held the victim with John Doe wrapping his arm around her neck while appellant held
her hands at the back. With the victim pressed between the two of them, John Doe stabbed
her once in her chest before releasing her. Once she fell down, appellant quickly took the
money placed at the altar inside the store and fled together with John Doe and the two
lookouts outside the store. All the foregoing indicate the presence of conspiracy between
appellant and his co- accused in the perpetration of robbery and killing of the victim.

It must be stressed that appellant played a crucial role in the killing of the victim to facilitate
the robbery. He was behind the victim holding her hands while John Doe grabbed her at the
neck. His act contributed in rendering the victim without any means of defending herself
when John Doe stabbed her frontally in the chest. Having acted in conspiracy with his co-
accused, appellant is equally liable for the killing of Yap.

As we held in People v. Baron19

The concerted manner in which the appellant and his companions perpetrated the crime
showed beyond reasonable doubt the presence of conspiracy. When a homicide takes place
by reason of or on the occasion of the robbery, all those who took part shall be guilty of
the special complex crime of robbery with homicide whether they actually participated
in the killing, unless there is proof that there was an endeavor to prevent the
killing.There was no evidence adduced in this case that the appellant attempted to prevent
the killing. Thus, regardless of the acts individually performed by the appellant and his co-
accused, and applying the basic principle in conspiracy that the "act of one is the act of all,"
the appellant is guilty as a co-conspirator. As a result, the criminal liabilities of the appellant
and his co-accused are one and the same. (Emphasis supplied)

In sum, the CA did not err in affirming the conviction of appellant for robbery with homicide.
Appellant was positively identified by prosecution eyewitness Arca as among those who
perpetrated the robbery and killing of Yap at the latter’s store on May 16, 2006 in Bgy.
Rawis, Legazpi City. This positive identification prevails over accused’s defense of alibi. As
pointed out by the trial court, it was not physically impossible for appellant to be at the scene
of the crime considering the presence of many public conveyances which would drastically
cut the one hour walk from Bigaa to Rawis to only a "couple of minutes." 20

On the award of damages, the trial court was correct in sentencing appellant to suffer the
penalty of reclusion perpetua and ordering him to pay P75,000.00 as civil indemnity for the
fact of death and P75,000.00 as moral damages, conformably with prevailing
jurisprudence.21 We also find the award of exemplary damages in the amount of P30,000.00
proper due to the presence of the aggravating circumstances of treachery and abuse of
superior strength, though these were not alleged in the information. While an aggravating
circumstance not specifically alleged in the information (albeit established at trial) cannot be
appreciated to increase the criminal liability of the accused, the established presence of one
or two aggravating circumstances of any kind or nature entitles the offended party to
exemplary damages under Article 2230 of the Civil Code because the requirement of
specificity in the information affected only the criminal liability of the accused, not his civil
liability.22

The aforesaid sums shall earn the legal interest at the rate of six percent (6%) per annum
from the finality of judgment until full payment.

WHEREFORE, the appeal is DISMISSED. The Decision dated March 22, 2013 of the Court
of Appeals in CA-G.R. CR-HC No. 05171 affirming the Decision dated June 24, 2011 of the
Regional Trial Court of Legazpi City, Branch 10 in Criminal Case No. 10916 is AFFIRMED.
The sums awarded as civil indemnity (P75,000.00), moral damages (P75,000.00) and
exemplary damages (P30,000.00) shall earn legal interest at the rate of 6% per annum from
the finality of judgment until full payment.

With costs against the accused-appellant.

SO ORDERED.

G.R. No. 200308 February 23, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
MERA "JOY" ELEUTERIO NIELLES, @ MERA NIELLES DELOS REYES, Accused-
Appellant.

RESOLUTION

DEL CASTILLO, J.:


Appellant Mera Joy Eleuterio Nielles @Mera Nielles Delos Reyes was charged with the
crime of Qualified Theft in an Information that reads as follows:

That on or about and sometime in July, 2004 in the City of Makati, Philippines and a place
within the jurisdiction of this Honorable Court, the above-named accused, being then the
cashier of complainant Juanita J. Flores and as such enjoying the trust and confidence
reposed upon her by the said complainant, with intent to gain and without the knowledge and
consent of the owner thereof, with grave abuse of confidence, did then and there willfully,
unlawfully and feloniously take, steal, and carry away collected money in the total amount of
₱640,353.86 to the damage and prejudice of the complainant, in the aforementioned amount
of ₱640,353.86. CONTRARY TO LAW.1

In an Order2 dated January 18, 2005, the Regional Trial Court (RTC) of Makati City, Branch
132, ordered appellant's release from confinement after having posted a bond in the amount
₱100,000.00 undertaken by Far Eastern Surety & Insurance Company, Inc. under Bond No.
8385. Appellant was thereafter arraigned where she pleaded not guilty to the charges. 3

Trial on the merits ensued.

The prosecution established that private complainant Juanita Flores (Flores) was engaged in
the business of guaranteeing purchase orders and gift checks of Shoemart and Landmark
and disposing, selling or transferring them for consideration. Appellant initially worked as
Flores’ house help but was eventually hired to work at Flores’ office performing clerical jobs
like sorting invoices. When Flores’ business grew, appellant was assigned to bill and collect
from sub-guarantors, and to encash and deposit checks. On July 15, 2004, appellant
collected ₱640,353.86 from the sub-guarantors. However, appellant did not remit the amount
to Flores or deposit it in her (Flores’) account. Instead, she issued 15 personal checks
totaling ₱640,353.86 and deposited them to Flores’ account. All the checks were dishonored
upon presentment due to "account closed." Appellant thereafter absconded.

For her part, appellant denied having stolen the amount of ₱640,353.86.

Ruling of the Regional Trial Court (RTC)

In a Judgment4 dated March 26, 2008, the RTC of Makati City, Branch 132, found appellant
guilty of the crime of qualified theft, thus:

Given the foregoing, accused Nielles took ₱640,353.86 belonging to private complainant
Juanita J. Flores, without the latter’s consent. The taking was done with intent to gain
because when the accused’s checks bounced, she failed to remit or return the amount. The
accused’s act was accomplished without the use of violence against or intimidation of
persons or force upon things, but rather by the use of abuse of confidence reposed [by]
private complainant [upon] her. Thus, the elements of theft, as well as the circumstances that
made the same as qualified theft, are present in the instant case.

Accused Nielles, on the other hand, denied having stolen and carried away ₱640,353.86.
Aside from her bare denial, she did not present any evidence to support this claim. In fact,
she did not deny that the checks were issued and deposited by her. Furthermore, she did not
provide any reason or motive why Juanita would file the present case against her.
Accordingly, her denial has no basis and deserves no consideration. 5

The dispositive portion of the RTC Judgment reads:


WHEREFORE, the Court finds the accused, Mera "Joy" Eleuterio Nielles a.k.a. Mera Nielles
Delos Reyes, GUILTY beyond reasonable doubt of the crime of Qualified Theft and hereby
sentences her to suffer the penalty of imprisonment of four (4) years of prision correccional,
as minimum to twenty (20) years of reclusion temporal, as maximum. She is ordered to pay
private complainant Juanita J. Flores ₱640,353.86 as actual damages.

SO ORDERED.6

Aggrieved, appellant filed a notice of appeal. At the same time, she submitted a Renewal
Certificate7 of her bond effective for the period January 18, 2008 to January 18, 2009.

Ruling of the Court of Appeals (CA)

In her Brief, appellant asserted that since private complainant Flores was abroad on July 15,
2004, she could not have personally known whether appellant indeed collected amounts
from the sub-guarantors. She posited that mere issuance of the 15 checks is not proof that
she received/collected payments from the sub-guarantors or that she failed to remit the
monies belonging to Flores. She insisted that the prosecution failed to establish that she
indeed collected monies from the sub-guarantors amounting to ₱640,353.86. Appellant also
theorized that she might have issued the checks in favor of the sub-guarantors for whatever
transactions they have between them; and that thereafter, when she went to these sub-
guarantors to collect their dues for private complainant, these sub-guarantors used the same
checks she previously issued as their payment for private complainant. For that reason her
personal checks were deposited in private complainant’s account.

The CA, however, in its Decision8 dated May 26, 2011, was not impressed by appellant’s
protestations. It held that the fact that Flores was out of the country during the commission of
the offense is irrelevant since the prosecution has satisfactorily established that upon her
arrival in the Philippines, she immediately investigated the matter and talked to the sub-
guarantors. Flores also confirmed that indeed appellant issued 15 personal checks in lieu of
the amounts collected and deposited the same to Flores’ account but were all dishonored
upon presentment. Significantly, the CA noted that aside from her bare denial, appellant did
not present any evidence to support her claim that she did not steal the amount of
₱640,353.86 from Flores. In fine, the CA found all the elements for the crime of qualified theft
to be present.

Thus, the CA affirmed with modification the ruling of the trial court, viz:

WHEREFORE, premises considered, the instant Appeal is hereby DENIED. Accordingly, the
assailed 26 March 2008 Decision of the Regional Trial Court of Makati City, Branch 132 in
Criminal Case No. 04-3643 is AFFIRMED with MODIFICATION. Accused-appellant is
hereby sentenced to suffer the penalty of reclusion perpetua. She is further ordered to pay
Private Complainant the amount of ₱640,353.86.

SO ORDERED.9

Hence, this appeal. In a Resolution10 dated April 18, 2012, we required both parties to file
their Supplemental Briefs. The Office of the Solicitor General manifested that it is no longer
filing its supplemental brief. On the other hand, appellant maintains in her Supplemental
Brief 11 that the prosecution failed to establish that she unlawfully took the amount of
₱640,353.86 belonging to Flores. She claims that mere issuance of the checks does not
prove unlawful taking of the unaccounted amount. She insists that, at most, the issuance of
the checks proves that the same was issued for consideration. On February5, 2013,
appellant furnished this Court her bond renewal certificate12 issued by Far Eastern Surety &
Insurance Co., Inc. effective for the period January 18, 2013 to January 18, 2014.

Our Ruling

We concur with the findings of the trial court and the Court of Appeals that the prosecution
satisfactorily established all the elements of qualified theft, to wit: 1) taking of personal
property;2) that said property belongs to another; 3) that the said taking was done with intent
to gain; 4) that it was done without the owner’s consent; 5) that it was accomplished without
the use of violence or intimidation against persons, or of force upon things; and 6) that it was
done with grave abuse of confidence.13 As correctly found by the appellate court:

Private complainant testified that Accused-appellant took the amount of ₱640,353.86 from
her without her consent by failing to turn over the amount she collected from the former’s
sub-guarantors. Instead, she issued fifteen (15) personal checks and deposited the same to
Private Complainant’s account which however, all bounced for the reason "account closed".
The taking of the amount collected by Accused-appellant was obviously done with intent to
gain as she failed to remit the same to Private Complainant. Intent to gain is presumed from
the act of unlawful taking. Further, the unlawful act was accomplished by Accused-appellant
without the use of violence or intimidation against persons, [or] of force upon things as the
payment to her of the said amount was voluntarily handed to her by the sub-guarantors as
she was known to be entrusted with the collection of payments.

The circumstance of grave abuse of confidence that made the same as qualified theft was
also proven. Accused-appellant herself testified that as a cashier, her functions and
1âwphi1

responsibilities include billings and collections from their agents and making of deposits and
withdrawals in behalf of Private Complainant. Moreover, when the payment for the purchase
orders or gift checks becomes due, she would fill up the four (4) blank checks given by the
sub-guarantor with the knowledge and consent of Private Complainant. It is beyond doubt
that an employee like a cashier who comes into possession of the monies she collected
enjoys the confidence reposed in her by her employer, as in the instant case. 14

We are one with the trial court and the appellate court in finding that the element of taking of
personal property was satisfactorily established by the prosecution. During her cross-
examination, private complainant Flores testified that upon having been apprised of the
unremitted collections, she conducted an investigation and inquired from her sub-guarantors
who admitted making payments to appellant. 15 She also testified during cross-examination
that when appellant arrived from Hongkong, the latter went to Flores’ office and admitted to
having converted the collections to her personal use. 16 Interestingly, when it was her turn to
testify, appellant did not rebut Flores’ testimony. During her direct examination, appellant
only testified thus:

Atty. Regino – Question:

Madam Witness, you are being charged here with taking, stealing and carrying away
collected money in the total amount of ₱640,353.86, that is owned by Juanita J. Flores. What
can you say about this allegation?

Witness:

That is not true, sir.


Atty. Regino – Question:

What is your basis in stating that?

Witness:

I never took that six hundred forty thousand that they are saying and, I never signed any
document with the sub-guarantors that I [took] money from them.17

Notably, when Flores testified during her cross-examination that she talked to the sub-
guarantors who admitted having made payments to appellant, the latter’s counsel no longer
made further clarifications or follow-up questions. Thus, Flores’ testimony on this fact
remains on record unrebutted. Clearly, it is futile on the part of the appellant to belatedly
claim in her Brief before the appellate court that the prosecution should have presented
these sub-guarantors so they could be cross-examined.18 There is likewise no merit in her
contention that the prosecution is guilty of suppression of evidence when they did not
present these sub-guarantors19 simply because the defense, on its own initiative, could very
well compel, thru the compulsory processes of the court, the attendance of these sub-
guarantors as witnesses.20 Moreover, we note that appellant did not even attempt to discredit
the testimony of Flores to the effect that upon her arrival from Hongkong, appellant went to
Flores’ office and admitted to having committed the offense.

Significantly, when appellant was placed on the witness stand, she did not even make any
attempt to explain her issuance of the 15 checks. In fact, during her entire testimony, she
never made any mention about the personal checks that she issued and deposited in Flores’
account. It was only in her Memorandum 21 filed with the trial court and her Brief 22 submitted to
the appellate court that the same was discussed. However, her explanation as to its
issuance is so convoluted that it defies belief. All that appellant could claim is that the
issuance of the checks only proves that the same was for a consideration – but omitted to
explain what the consideration was. She also theorized that she might have issued the
checks to the sub-guarantors for her personal transactions but likewise failed to elaborate on
what these transactions were. In any event, if indeed appellant did not steal the amount of
₱640,353.86 belonging to Flores, how come she issued 15 personal checks in favor of the
latter and deposited the same in her account, albeit they were subsequently dishonored?
Besides, we note that in appellant’s Counter Affidavit23 dated August 20, 2004 subscribed
before 3rd Assistant City Prosecutor Hannibal S. Santillan of Makati City, she already
admitted having taken without the knowledge and consent of private complainant several
purchase orders and gift checks worth thousands of pesos. She claimed though that she was
only forced to do so by Edna Cruz and cohorts.

We also concur with the findings of the trial court and the CA that the prosecution
established beyond reasonable doubt that the amount of ₱640,353.86 actually belonged to
Flores; that appellant stole the amount with intent to gain and without Flores’ consent; that
the taking was accomplished without the use of violence or intimidation against persons, or
of force upon things; and that it was committed with grave abuse of confidence.

Anent the penalty imposed, Articles 309 and 310 of the Revised Penal Code state:

Art. 309. Penalties. Any person guilty of theft shall be punished by:

The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the
thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten thousand pesos, but the
total penalty which may be imposed shall not exceed twenty years. In such cases, and in
connection with the accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

xxxx

Art. 310. Qualified theft. The crime of theft shall be punished by the penalties next higher by
two degrees than those respectively specified in the next preceding articles, if committed by
a domestic servant, or with grave abuse of confidence, or if the property stolen is motor
vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the
plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of
fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil
disturbance.

Based on the foregoing, since the amount taken is ₱640,353.86, then the imposable penalty
shall be the maximum period of prision mayor in its minimum and medium periods, or
eight(8) years, eight (8) months and one (1) day to ten (10) years, adding one (1) year for
each additional ₱10,000.00. Thus, from ₱640,353.86, we deduct ₱22,000.00, giving us a
balance of ₱618,353.86 which we divide by ₱10,000.00. We now have sixty-one (61)years
which we will add to the basic penalty of eight (8) years, eight (8) months and one (1) day to
ten (10) years. However, as stated in Article 309, the imposable penalty for simple theft
should not exceed a total of twenty (20) years. Thus, if appellant had committed only simple
theft, her penalty would be twenty (20) years of reclusion temporal. Considering however that
in qualified theft, the penalty is two degrees higher, then the appellate court properly
imposed the penalty of reclusion perpetua.24

Finally, we note that appellant has not yet been committed to prison. In view thereof and
based on our foregoing discussion, appellant must be ordered arrested and committed to
prison to start serving her sentence.

ACCORDINGLY, the assailed May 26, 2011 Decision of the Court of Appeals in CA-G.R. CR
No. 31635 is AFFIRMED. The Regional Trial Court of Makati City, Branch 132 is DIRECTED
to issue a warrant for the arrest of appellant and to order her commitment at the Correctional
Institution for Women, and to submit to this Court a Report of such commitment, all within ten
(10) days from receipt of this Resolution. The Superintendent, Correctional Institution for
Women is DIRECTED to confirm to this Court the confinement of appellant within ten (10)
days therefrom.

SO ORDERED.

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